Supreme Court

Unusual Supreme Court Lineup Holds that Jury Verdicts in (Most) Criminal Cases Must Be Unanimous

All three of today's Supreme Court decisions featured unusual alignments among the justices.

|The Volokh Conspiracy |

By a vote of 6-3, the U.S. Supreme Court held that the Constitution requires unanimous jury verdicts for convictions in criminal cases. Writing for the Court in Ramos v. Louisiana, Justice Neil Gorsuch explained that " the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a
unanimous verdict to convict a defendant of a serious offense." (Whether jury unanimity is required in cases involving "petty offenses" was not before the Court, as noted in a footnote to the opinion.) This decision overturned the conviction of Evangelisto Ramos, who was convicted by  nonunanimous jury in Louisiana. Nonunanimous jury verdicts in criminal cases were also allowed in Oregon.

The division among the justices in Ramos is quite something:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

Here's how that breaks down: Six justices (Gorsuch, Thomas, Ginsburg, Breyer, Sotomayor, Kavanaugh, agreed with the Court's bottom line conclusion, but Justice Gorsuch's opinion is only joined in its entirety by three justices (Gorsuch, Ginsburg). Justice Alito's dissent was joined by Chief Justice Roberts and Justice Kagan, in part.

Justice Thomas wrote separately because he wanted to "make clear that this right applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause." Historically, the Court has incorporated rights against the states through the Due Process Clause. Many academics think this is an error, and Justice Thomas has long indicated he does as well.

One issue dividing justices in Ramos is the treatment of precedent, as the decision overturned Apodaca v. Oregon, a 1972 decision upholding the constitutionality of nonunanimous criminal convictions in state court. Both Justices Sotomayor and Kavanaugh wrote separately to discuss the reasons for overturning Apodaca. (Sotomayor also wanted to note the "racially biased origins" of laws allowing nonunanimous juries to convict people of criminal offenses.)

Justice Alito's dissent stressed the importance of stare decisis. This issue also likely explains the Court's lineup here, as Chief Justice Roberts and Justice Kagan are the Court's most vocal defenders of upholding precedent (though not always in the same cases). Justice Kagan has become particularly vocal in her defense of stare decisis, so it's also no surprise that she does not join the portion of Alito's dissent that explains why, in his view, the argument for overturning Apodaca was not as strong as the argument to overturn precedents in other recent cases.

(See also Eugene's post on the opinion below.)

Today's second opinion, Thryv v. Click-to-Call Technologies, concerning inter partes review of patent claims also had an interesting 7-2 lineup (if, perhaps, less interesting subject matter). Justice Ginsburg wrote for a seven justice majority. Justice Gorsuch, joined by Justice Sotomayor, dissented. Interestingly, Justices Thomas and Alito declined to join a small part of Ginsburg's majority, and Sotomayor declined to join the last part of Gorsuch's dissent.

Today's third opinion (about which I hope to say more later), was Atlantic Richfield v. Christian, an interesting case involving the availability of state law remedies for hazardous waste site cleanups under the federal Superfund law. The Court was unanimous on some issues, but split 8-1 on one question, and 7-2 on another.

Chief Justice Roberts wrote the opinion for the Court in Atlantic Richfield. In the first part of his opinion, the Court unanimously concluded it had jurisdiction to hear the case. As noted above, the remainder of the opinion was either 8-1 or 7-2. Justice Alito dissented in part, on the basis that the Court was too permissive in allowing state court challenges to federally approved Superfund cleanups.  Justice Gorsuch, joined by Justice Thomas, dissented from a different portion of the opinion which would preclude landowners from pursuing state common law remedies for hazardous waste site cleanups. In Justice Gorsuch's view, the federal Superfund statute was intended to supplement traditional state law remedies, not supplant them. (Time permitting, I'll write a separate post on this case after I've had the time to dig in.)

Two other tidbits: Justice Gorsuch was the one justice to write an opinion in all three cases decided today. Also, in today's orders, the Supreme Court denied the Solicitor General's request for oral argument time as an amicus for the first time in a decade.

NEXT: Pushy Politicians Make Stay-at-Home Protests Necessary

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  1. Folks: Ramos was really a proxy battle for the forthcoming challenge to Roe/Casey. That’s why you saw such strange fractures and alignments — the Justices were all laying down markers for how they viewed stare decisis, in preparation for the forthcoming Roe/Casey challenge. You saw the exact same thing thirty years ago in Burnham v. Superior Court (Justices laying down markers on how they viewed due process, in preparation for Casey).

    1. Yep. And great that you remember Burnham, which should have been an easy case about personal jurisdiction and became a SCOTUS Death Match.

  2. Again with this “serious offense” stuff, as though the 6th amendment actually made that distinction, rather than saying “All” criminal prosecutions.

    1. I understand the logic of looking to historic practice to find that there were summary offenses that did not require jury trials. That being said, I think it would be a mistake to suggest that these offenses are any offense with a punishment of less than six months. Instead, the Court seemed clear were are two requirements historically (and based on the initial case law for this issue, which I believe is Duncan but I’d have to double check): (1) the punishment was six months or less and (2) it is an offense traditionally considered to be a summary offense under the common law.

      1. Less than six months I could sort of see. The problem is, it’s less than six months per count. Meaning, they can charge you with sixty counts of petty whatever, and put you away for decades without a jury trial.

        An absurd and odious result that they can arrive at only because they’re ignoring the “All” in the 6th amendment in the first place.

        1. There has to be some line drawn, though. It would also be absurd to allow everyone who gets a parking ticket to request a jury trial.

          1. Why? Because the issuers can’t afford so many trials? Then they can stop issuing so many tickets.

            1. What if there are so many cars illegally parked?

              You are right up against “Constitution is not a suicide pact” reasoning. The point of jury trials is to ensure that the state cannot, on its say-so, impose serious punishments on people. It isn’t to create a situation where the public can simply deliberately flout rules and overwhelm the system’s ability to try them.

              1. “What if there are so many cars illegally parked?”

                Then maybe the parking regulations are overdone and need to be rethought.

          2. Every traffic ticket I’ve been issued has had “court costs” added on to it, even when I just mailed in a check and never had to appear in court.

            If you demand a jury trial and get convicted anyway, you would pay not only the parking ticket’s fine, but the court costs for a jury trial, too. It should cut down on the number of people doing so, while preserving the rights of the accused in line with the Constitution.
            Is that so bad?

            1. The actual court costs for a jury trial (even a very simple one) are far in excess of what most defendants can realistically pay. So you’re either going to deny most people access as a practical matter, or else run into the problems Dilan is articulating.

              1. Yes, the costs are far higher – but they are not mandatory, just optional. People who want a jury trial for parking tickets can get one, with all the consequences of being found guilty in such a trial.

                I don’t see how anyone would be denied anything by giving the option – people don’t get a jury trial now, so the fact that most people could not afford the cost of losing one doesn’t change anything.

  3. Just to note Louisiana no longer allows non unambitious jury verdicts a state constitutional amendment banning them overwhelmingly (64.4%) passed in November 2018. The amendment only applied to crimes committed after January 1 2019. It’s not clear how many convictions there were by non unanimous juries. It’s also not clear how many people in Louisiana were aware that juries didn’t have to be unanimous, some polls indicated it was a sizable number.

    1. I’m glad Louisiana will only allow ambitious jury verdicts from now on.

    2. The cutoff date is for crimes committed, not prosecutions started? How bizarre, given that determining when something happened is sometimes part of the contention of the trial.

  4. Somewhat related:

    Andrew Fleischman pointed out on twitter this morning that at least one Georgia trial judge had a unique workaround to the jury unanimity requirement: dismiss the holdout who didn’t believe the state’s evidence and put the alternate in.

    The Georgia Supreme Court correctly held that he couldn’t do that.

    https://www.gasupreme.us/wp-content/uploads/2020/04/s20a0364.pdf

    1. That is one of those cases where I wonder if the juror was in fact crazy or not operating in good faith, and did not simply come to a different conclusion than the rest of the jury. Some of the commentary suggests that may have been the case.

      Of course what the judge should have done is declare a mistrial and start over with a new jury.

    2. They did this to Scott Peterson in California.

      The law isn’t 100 percent clear that a trial judge can’t do this. “Refusing to deliberate” is a ground for removal.

      1. In the linked case, the judge literally removed the juror because he didn’t believe the state’s evidence. There was no claim that the juror refused to deliberate. IANAL, but I sure hope it’s clear that judges can’t do that.

  5. The summary notes “but Justice Gorsuch’s opinion is only joined in its entirety by three justices (Gorsuch, Ginsburg).” It should be “Breyer, Ginsburg).”

    1. But you’re ok with “joined…by three justices”? Can’t anyone here count?

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